224 F.

2d 849

OIL TRANSFER CORPORATION, as Owner of The OIL

TRANSFER NO. 31, Libelant-Appellee,
v.
The CREE, Motor Tug Cree, Inc., Claimant-Appellant,
THE DAUNTLESS NO. 12 and THE PENN NO. 5, Dauntless
Towing Line, Inc. and Penn No. 5, Inc., Claimants-Appellees,
and
THE K. WHITTELSEY, Oil Transfer Corporation, ClaimantImpleaded-Appellee.
No. 311.
Docket 23513.

United States Court of Appeals Second Circuit.

Argued May 11, 1955.
Decided June 22, 1955.

The facts, as found by the trial judge, are as follows:

"About 1:45 P.M. the laden OT-31, made up with the Tug K. Whittelsey,
pusher-fashion, departed Waterford Terminal for the southbound trip to
Carteret, N. J. In the Hudson River some two and one-half miles south of
Waterford is the Troy lock, because of the existing freshet condition, the
government engineers in charge of the lock required all vessels locking
through to have the assistance of two tugs, in order to prevent damage to
the lock. To comply with this requirement the tug Otco was engaged to
join the tow in the vicinity of the lock. Weather conditions were poor,
with sleet, snow and reduced visibility.
"On the trip downstream an uneventful meeting was had with a
northbound tow, consisting of the tugs Penn No. 5, Dauntless No. 12, and
the Oil barge Morania 140, somewhere to the north of 112th Street bridge,
and south of buoy No. 7. After passing the 112th Street bridge and in the
vicinity of buoy No. 5, the K. Whittelsey and tow were passed by the tug
Otco, which proceeded down to the lock. The K. Whittelsey blew the
regulation lock signal signifying an intention to lock, when in the vicinity

of buoy No. 5, about a mile from the lock. The tug Otco, having gone to
within 300 feet of the lock, also blew the signal and rejoined the K.
Whittelsey and OT-31 in the vicinity of Buoy No. 2. The Otco tied up
with its starboard bow to the OT-31's starboard bow, the Otco heading
upstream so as to hold the tow against the current.
"The three-unit tow had drifted about halfway to buoy No. 1, and close in
to the east bank, when, without any passing signals, the Penn No. 5 and
the Dauntless No. 12 passed to starboard of the unit, on their return from
the Waterford Terminal. These tugs tied up to the east lock wall close to
the lock gate to await lockage.
"By this time the snow had stopped, visibility had cleared and the lock
which heretofore had been obscured had become visible to those aboard
the K. Whittelsey, standing by in the area north of buoy No. 1, about
1500-1600 feet north of the lock gate.
"The lock used two signal devices, a green-red light signal and a
semaphore arm. At the time the lock first became visible to the K.
Whittelsey and tow the semaphore was down and the red light showing,
signifying that the lock was in use.
"Within a short time the superstructure, and then the entire outlines, of
two tugs and a barge, being raised in the lock and heading north, became
visible to the waiting K. Whittelsey unit. At about the same time the tugs
Penn No. 5 and Dauntless No. 12 which had been tied up to the east lock
wall proceeded to a point near the north end of the west lock wall to allow
room for the northbound unit to pass out of the lock.
"The gates of the lock opened and the unit, consisting of the tug Cree
towing and the tug Chemung pushing the barge Hygrade No. 12, came
out. As the stern of the Chemung cleared the lock wall, the K. Whittelsey
still in a position north of buoy No. 1, in preparation for beginning its run
on the lock, and believing itself to have precedence, exchanged starboard
meeting signals with the northbound unit, signaled the Otco to cast off,
and, this accomplished, began its run on the lock.
"About this time the navigator of the K. Whittelsey noticed the Penn No.
5 and Dauntless No. 12 enter the lock. Although he considered himself
entitled to enter the lock first by virtue of his prior locking signal, his
position in the standby area and the fact that he was encumbered with a
tow, he did not consider the situation alarming since he would have room
to get a line out and stop his tow part way in the lock; the tugs could then
be rearranged and all the vessels locked down together.

"As the K. Whittelsey and its tow proceeded to the meeting with the
northbound unit, the tug Cree cast off from the Hygrade 12, held to the
west side of the river to allow the barge and the Chemung to pass, and
then rounded to starboard passing under the stern of the Chemung and
directly into the path of the OT-31 and K. Whittelsey. Having completed
its turn the Cree proceeded into the lock, the gates of which were
thereupon closed. The OT-31 and K. Whittelsey which by that time had
headway and a three to four mile current under foot took action to stop, so
as to prevent collision with the lock gates. As a result, the OT-31 struck
the east wall, caromed off and struck the west wall a glancing blow and
was brought to a stop only 30 feet from the lock gates after getting a line
to the west wall."
The OT-31 sued the tugs Penn No. 5, Dauntless No. 12 and Cree,
claiming their negligence as the proximate cause of its injuries from the
collisions against the lock-walls. The Cree, in turn, impleaded as a
claimant the Tug K. Whittelsey, owned by the libelant.
The trial judge found that, although the Penn No. 5 and the Dauntless No.
12 may have been at fault in not sounding the statutory blast for starboard
passage, and in not allowing the encumbered OT-31 to enter the lock first,
there was no causal relation between those faults and the injuries to the
OT-31. He also found that, although the Whittelsey might have more
promptly taken action by sounding the danger signal and reversing
engines, it is not clear that such action would have prevented the accident,
and that the Whittelsey was not at fault for not having followed what
might appear, in retrospect, as a sounder course. He found the tug Cree
wholly at fault for the damages sustained by the OT-31. From that
judgment, the Cree appeals.
Foley & Martin, New York City (James A. Martin and Warren J. Martin,
New York City, of counsel), proctors for claimant-appellant.
Macklin, Speer, Hanan & McKernan, New York City (John C. Hart, New
York City, of counsel), proctors for libelant-appellee, Oil Transfer
Corporation, and claimant-impleaded appellee, Oil Transfer Corporation.
Herbert P. Reid, New York City, proctor for claimant-appellee, Dauntless
Towing Line, Inc.
Platow & Lyon, New York City (John A. Lyon, New York City, of
counsel), proctors for claimants-appellees, Penn No. 5, Inc.
Before HAND, SWAN and FRANK, Circuit Judges.

FRANK, Circuit Judge.

There was evidence from which the judge might reasonably have found the
facts as he did, and we agree with his judgment as to each of the tugs. The
appellant alleges that the judge overlooked or ignored the deposition of Chester
V. Germond, lock-tender at the Troy Locks. Germond testified by deposition to
a conversation with the captain of the Cree at the time the Cree was moving
north through the locks. According to his testimony, the Cree requested, and
was granted, permission to re-enter the lock after it had disengaged itself, and
be locked through on the southbound return with the Penn No. 5 and the
Dauntless No. 12. Germond told the Cree's captain that the north gate would be
held open for him although the signal-light at that end of the lock would still be
red. However, the Cree did not return to the lock on the red signal, as agreed
upon with the lock-tender. Had she done so, she would have been blameless,
except for a possible violation of the Whittelsey's precedence. See Reg. 4,
Rules and Regulations to Govern the Use, Administration and Navigation of the
United States Lock in the Hudson River at Troy, N. Y. The trial judge found
and the record supports the finding that the light went green when the tug
Chemung, still in tow with the Cree on the northbound trip, cleared the lockwalls, and remained green at least until after the Whittelsey and her two had
begun their run to the lock. Thus the Cree re-entered not on red but on green,
after the Whittelsey, seeing the green, was entitled to begin its run to the lock.
The arrangement with the lock-tender does not protect the Cree, for it did not
proceed in accordance with it.

Although the Whittelsey and her tow were also entitled to precedence over the
two light tugs Penn No. 5 and Dauntless No. 12, it was not harmed by their
proceeding ahead of the Whittelsey, for both they and the Whittelsey tow could
have berthed in the lock, although it would have been close quarters. For this
reason, the Whittelsey took no action to reverse itself when it saw the two light
tugs proceeding ahead of it, and for this reason the trial judge properly found
that there was no causal connection between anything done by the two light
tugs and the damage done the OT-31. It was the negligent navigation of the
Cree in not yielding to the encumbered tow which caused the damage.

Affirmed.